1.International
human rights law has developed standards on the right of access to
judicial and other remedies that serve as suitable and effective
grievance mechanisms against violations of human rights. In that sense,
States not only have a negative obligation not to obstruct access to
those remedies but, in particular, a positive duty to organize their
institutional apparatus so that all individuals can access those
remedies. To that end, states are required to remove any regulatory,
social, or economic obstacles that prevent or hinder the possibility of
access to justice.

2.In
recent years, the inter-American system of human rights (the "IASHR" or
"System") has recognized the need to outline principles and standards on
the scope of the rights to a fair trial and effective judicial
protection in cases involving violation of economic, social and cultural
rights ("social rights" or "ESCR").

3.Accordingly,
the Inter-American Commission on Human Rights (the "IACHR" or
"Inter-American Commission") has prepared this review in order to
highlight and systematize the case law of the IASHR–both the IACHR and
the Inter-American Court of Human Rights (the "I/A Court H.R." or
"Court") – on four core issues that it has regarded as priorities for
the judicial protection of economic, social and cultural rights: 1) the
obligation to remove economic obstacles to ensure access to the courts;
2) the components of due process of law in administrative proceedings
concerning social rights; 3) the components of due process of law in
judicial proceedings concerning social rights; and, 4) the components of
effective judicial protection of individual and collective social
rights.

4.These
standards are valuable not only as guidelines for domestic courts to
interpret the American Convention on Human Rights ("American Convention"
or "Convention") but also in terms of their potential contribution for
enhancing the institutional framework of social services and policies in
the countries of the Americas, as well as for strengthening oversight,
transparency, and accountability systems, as well as mechanisms for
participation and societal oversight of public policies in this area.
This overview of the case law of the inter-American system also makes it
possible to have a better analysis of the main problems in the region as
regards access to justice systems. Individual cases cannot be
considered absolutely representative of the social and institutional
problems of all the countries in the region; however, it is fair to say
that the petitions system makes a good sound box for these problems.

5.The
first issue that affects the right of access to justice in the area of
social rights is the existence of economic or financial obstacles in
access to the courts and the extent of the positive obligation of the
State to remove those obstacles in order to ensure an effective right to
a hearing by a tribunal. In this way, numerous aspects connected with
effective access to justice, such as availability of a free public
defense for persons without means and procedural costs, are of
inestimable instrumental value to ensure the enforceability of economic,
social and cultural rights. In this regard, it is common for the
unequal economic or social status of litigants to be reflected in an
unequal possibility of defense in trial.

6.In
this respect, the IASHR has recognized the obligation to remove any
obstacles in access to justice that originate from the economic status
of persons. Both the Inter-American Court and the IACHR have made it an
obligation in certain circumstances to provide free legal services to
persons without means in order to prevent infringement of their right to
a fair trial and effective judicial protection. With this in view, the
Inter-American Commission has identified certain guidelines for
determining the propriety of free legal counsel in specific cases.
These are: a) the resources available to the person concerned; b) the
complexity of the issues involved; and, c) the significance of the
rights involved.

7.At
the same time, the IACHR has determined that in certain judicial
proceedings free legal counsel is necessarily required, in order to
present and pursue those proceedings. Thus, the Inter-American
Commission has found that the technical complexity of certain
constitutional proceedings obligates the provision of free legal counsel
in order effectively to institute them.

8.By
the same token, the IASHR has established that procedural costs, whether
in judicial or administrative proceedings, and the location of tribunals
are factors that may also render access to justice impossible and,
therefore, result in a violation of the right to a fair trial. The
organs of the IASHR have found that a proceeding in which the costs are
prohibitive violates Article 8 of the American Convention. In this
regard, the Commission has held that judicial remedies created to review
administrative decisions must be not only prompt and effective, but also
"inexpensive" or affordable.

9.In
turn, the IASHR has begun to identify situations of structural
inequality that restrict access to justice for certain segments of
society. In these cases, the IACHR has underscored the obligation of
the State to provide free legal services and to strengthen community
mechanisms for this purpose, in order to enable these groups that suffer
disadvantage and inequality to access the judicial protective bodies and
information about the rights they possess and the judicial resources
available to protect them.

10.A
second aspect to be considered is the existence of a right to a fair
trial in administrative proceedings as well as the precise scope or
substance of that right. The administrative sphere is where the
majority of decisions regarding the award of social security benefits
are made. In most countries in the region social policies and the
organization and workings of state social benefits have not usually been
guided by a rights-based approach. On the contrary, benefits have
mainly been organized and provided according to the inverse logic of the
handout approach and for that reason, institutional controls
notwithstanding, this area of activity of public administration has
traditionally been the preserve of the political discretion of the
authorities.

11.In
this way, the IASHR has established its position on the observance of
due process guarantees in administrative proceedings on social rights.
At the same time, it has underscored the obligation for states to
establish clear rules governing the behavior of their agents in order to
avoid inappropriate levels of discretionality in the administrative
sphere that might encourage arbitrary or discriminatory practices.

12.In
this way, in their examinations of cases that concern, inter alia,
economic, social and cultural rights, rights of indigenous peoples,
rights of migrants, and environmental rights, both the IACHR and the
Inter-American Court have developed a clear standard as regards the full
applicability of the guarantee of due process of law in administrative
proceedings. Thus, both organs have determined that due process of law
must be observed in all proceedings for the determination of obligations
and rights.

13.In
keeping with this notion, the IASHR has underscored the need to regulate
and restrict state discretionary power. The Court and the IACHR have
determined that the activities of administrations are subject to
specific limits, among them respect for human rights. In cases that
involve especially vulnerable groups, the Inter-American Court has
identified the need to draw links between the scope of administrative
due process and effective observance of the prohibition of
discrimination.

14.The
IASHR has begun to identify the elements that comprise the rights to a
fair trial in administrative proceedings. In this connection, the
Inter-American Commission has considered that one of the elements that
make up administrative due process is the guarantee of a hearing for the
determination of the rights at issue. According to the IACHR, that
guarantee includes: the right to legal assistance; the right to exercise
the right of defense; and the right to a reasonable time in which to
prepare and formalize arguments, as well as to seek and adduce the
corresponding evidence. The Inter-American Commission has also
concluded that prior notification of charges is also a core component of
that guarantee.

15.The
IACHR and the Court have also pinpointed the right to a reasoned
decision on merits and the need to ensure publicity of administrative
proceedings as integral components of due process. Furthermore, the
IASHR has underscored the importance of the right to an administrative
proceeding in a reasonable time. The Inter-American Court has
determined that a prolonged delay in an administrative proceeding
constitutes, in principle, a violation of Article 8 of the Convention
and that, in order to refute such a conclusion, it is up to the State to
show that the delay in the proceeding was due to the complexity of the
case or to the conduct of the parties.

16.Another
element of the guarantee of due process of law in administrative
proceedings that has evolved in the framework of the IASHR is the right
to judicial review of administrative decisions. In this respect, the
IACHR has determined that any law or measure that obstructs access to
the courts and is not warranted by what is reasonably needed for the
administration of justice must be regarded as contrary to Article 8(1)
of the Convention. The
IACHR has also made a number of clarifications as to the appropriate
extent of this review, and stated that there should be at least a basic
judicial supervision of the lawfulness and reasonableness of
administrative decisions, in order to ascertain that they are compatible
with the guarantees enshrined in the Convention.

17.The
third aspect examined in the case law of the IASHR is the existence of
clear criteria on due process of law in judicial proceedings, in cases
concerning the determination of economic, social and cultural rights.
The case law of the IASHR has recognized a close link between the
scope of the rights embodied in Articles 8 and 25 of the American
Convention. Accordingly, it has been determined that states have the
obligation not only to design and adopt into law effective remedies for
the comprehensive protection of human rights, but also to ensure proper
implementation of said remedies by their judicial authorities in
proceedings that offer the due guarantees.

18.There
is a direct connection between the suitability of available judicial
remedies and the real possibility of observance of economic, social and
cultural rights. Both the Inter-American Court and the IACHR have
started to identify those elements that comprise the right to a fair
trial enshrined in Article 8(1) of the American Convention as regards
social rights proceedings, which bear certain characteristics that
distinguish them from other criminal or civil proceedings, in addition
to having a number of features in common.

19.The
IASHR has identified the principle of equality of arms as an integral
part of the right to a fair trial and has begun to develop standards for
its observance and assurance. This principle is a highly significant
given that the types of relationships governed by social rights usually
give rise to and presuppose conditions of inequality between the parties
in a dispute --workers and employers-- or between the beneficiary of a
social service and the State that provides the service. That inequality
generally translates into disadvantages in the framework of judicial
proceedings.

20.The
Court has found that real inequality between the parties in a proceeding
engages the duty of the State to adopt all the necessary measures to
lessen any deficiencies that thwart effective protection of the rights
at stake. The Inter-American Commission has also noted that the
particular circumstances of a case may determine that guarantees
additional to those explicitly prescribed in the pertinent human rights
instruments are necessary to ensure a fair hearing. For the IACHR this
includes recognizing and correcting any real disadvantages that the
parties in a proceeding might have, thereby observing the principle of
equality before the law and the prohibition of discrimination.

21.The
right to a reasoned decision on the merits of a matter has also
been recognized by the IACHR and the Court as an integral element of due
process of law in judicial proceedings. Thus, the Inter-American
Commission has found that after the stages in which the evidence and
arguments are presented, the jurisdictional organs should provide a
reasoned basis for their decisions and so determine the admissibility or
not of the legal claim on which the complaint is founded. The Court,
too, has held that states should ensure that effective judicial remedies
are decided in accordance with Article 8(1) of the American Convention,
for which reason, the courts should adopt decisions that address the
merits of suits brought before them.

22.The
right to a trial within a reasonable time
is another of the components of the guarantee of a fair trial in
judicial proceedings that is particularly relevant as regards protection
of social rights.
The IACHR and the Inter-American Court have identified certain criteria
for determining a reasonable time in a proceeding.
These are: a) the complexity of the matter; b) the judicial activity
of the interested party; c) the behavior of the judicial authorities;
d) the purpose of the judicial proceeding in question; and, e) the
nature of the rights at issue.

23.In
various precedents dealing with economic, social and cultural rights,
the Inter-American Commission has emphasized the need to ensure
expedition in proceedings on petitions for constitutional relief (amparo).
The IACHR has determined that timeliness is critical to the
effectiveness of a remedy and that the right to judicial protection
requires that courts act with due dispatch in issuing opinions and
decisions, particularly in urgent cases. Accordingly, the
Inter-American Commission has underscored that the organs responsible
for dispensing justice unquestionably have the obligation to conduct
proceedings quickly and promptly.

24.In
this way, the IACHR has pointed out that the main criteria in making a
determination as to reasonable time in proceedings is not the quantity
of actions, but their efficacy.

25.With
respect to this right, the IACHR has also found in a number of cases
that the length of a trial should be counted from the start of the
administrative proceedings, not when the case reaches the judicial
stage. While it cannot be said that a definitive standard yet exists on
this issue, the case law of the IACHR denotes that the IASHR has begun
to adopt a position in this respect.

26.In
turn, the organs of the IASHR have indicated that judgment enforcement
should also be considered an integral part of the proceeding and that,
consequently, it should be taken into account in examining if the length
of a trial is reasonable. The foregoing is due to the fact that the
right of access to justice requires that all disputes be settled within
a reasonable time. This issue is critical because in many social rights
cases --particularly in connection with social security matters--
judgment enforcement proceedings have been severely delayed and
obstructed by emergency rules and dilatory defense measures in favor of
states.

27.The
fourth aspect examined by the IASHR is the right to effective judicial
protection of social rights. This right creates an obligation for
states to provide suitable and effective judicial remedies for the
protection of social rights, in both their individual and their
collective dimension. The traditional judicial remedies on the law
books were conceived for the protection of conventional civil and
political rights. Most countries in the hemisphere have created and
enacted regulations on simple and prompt judicial remedies to protect
rights in serious and urgent situations. However, often these remedies
are not adequate for protecting social rights. Sometimes this is due to
limits on the standing of groups or collectives of victims of
violations, or to bureaucratic delays in judicial proceedings, which
render them ineffective. In some cases there are problems in accessing
these remedies because the protection does not extend to certain social
rights owing to the fact that they are not considered fundamental
rights, or because the procedural requirements for their admission are
excessively onerous. The IASHR has sought to establish a number of
basic principles to be met by urgent protection remedies in order to be
compatible with the American Convention. The right to effective
judicial protection also requires that judicial procedures intended to
protect social rights do not impose conditions or obstacles such as to
render them ineffective for accomplishing the purposes for which they
were designed. Thus, the IASHR has found that in certain cases there
are major obstacles and restrictions to the enforcement of binding
judgments against states, in particular with respect to judgments that
recognize social security rights. The tendency to invoke emergency laws
in this area limits the possibility of states to discharge financial
obligations and tends to grant disproportionate privileges to the
administration vis-à-vis the persons whose rights have already been
recognized by the courts.

28.Article
25 of the Convention establishes the duty of states parties to provide a
simple, prompt, and effective recourse for the protection and assurance
of rights. Thus, the organs of the IASHR have set about drawing up
standards on the scope of that obligation in the area of economic,
social and cultural rights. Both the IACHR and the Inter-American Court
have identified the need to provide procedural measures by which to
ensure immediate -and even precautionary or preventive- protection of
social rights even though the merits of the matter in question may
require more prolonged analysis.

29.The
Inter-American Commission has
identified certain basic characteristics that such measures should meet
in order to be considered suitable by the standards of the American
Convention. Thus, it has found that such remedies should be simple,
urgent, informal, accessible, and processed by independent bodies; that
they can be processed on an individual basis or as collective
precautionary actions to protect a particular group or one that is
identifiable; that the such remedies enjoy broad, active legitimacy;
that individuals have the opportunity to approach federal or national
legal entities when bias is suspected in the conduct of state or local
bodies, and, finally, that provision be made for the implementation of
protective measures in consultation with the affected parties.

30.On
this point, the IACHR has noted that inasmuch as such actions are
designed to protect fundamental rights in urgent cases, the evidentiary
procedures should not be the same as that required in ordinary
proceedings; the idea is that measures be adopted within a brief time
period for the immediate protection of the threatened rights.

31.At
the same time, in recent years the Inter-American Court and the IACHR
have also recognized the need for protection of economic, social and
cultural rights, no longer simply in their individual dimension, but
also in their collective dimension. In this framework, the IASHR has
begun to outline standards on judicial protection mechanisms designed to
ensure access to collective litigation and, in particular, on the scope
of the obligation of states to make available grievance procedures of
this type. The IASHR has clearly evolved in this area insofar as it has
expressly recognized the collective dimension of certain rights and the
need to draw up and put into practice legal mechanisms in order fully to
ensure that dimension. Thus, the greater scope that the organs of the
IASHR have recognized to the guarantee provided in Article 25 of the
American Convention, in order to include effective judicial protection
of collective rights in its framework, is plainly visible.

32.At
the same time, of late the case law of the IASHR has also been firmer
and more robust in demanding effective observance of the right to
effective judicial protection for economic, social and cultural rights
in their individual dimension. Thus, for example, the Inter-American
Court has recognized the need for states to design and implement
effective judicial grievance mechanisms to claim protection of basic
social rights, such as the rights of workers.

33.Finally,
in recent years, the System has made significant strides in setting
standards on the obligation of states to have in place mechanisms to
ensure the effective enforcement of judgments handed down by the
judiciary in each state. In this regard, The
Inter-American Commission has
taken it upon itself to underscore certain distinctive features of the
judgment enforcement process when it is the State that is required to
carry out the judgment. In this way, it has noted that the obligation
of the State to guarantee the enforcement of judicial rulings takes on
special importance when it is the State itself that must carry out the
ruling, whether this is to be done through the executive, legislative or
judicial branch, at the provincial or municipal level, through the
central administration or the decentralized structure, through public
enterprises or institutes, or any similar body, since such bodies are
part of the State and generally enjoy procedural privileges, such as
freedom from attachment of their assets. According to the IACHR, these
bodies may seek to use their power and privileges in an effort to ignore
judicial rulings that go against them. The
Inter-American Commission considers
that when an organ of the State is unwilling to carry out an
unfavorable judgment, it may try to ignore the ruling simply by failing
to observe it, or it may opt for more elaborate methods also with the
aim of rendering the ruling ineffective, while trying to maintain a
certain appearance of formal validity in the way in which it acts.

34.The
IACHR has held on several occasions that failure to abide by a binding
judicial decision constitutes a continuing breach of Article 25 of the
American Convention. In this regard, the
Inter-American Commission has
also outlined an incipient standard whereby it has held that
non-compliance with judicial rulings that protect social rights, such as
the right to social security, may also amount to a violation of Article
26 of the American Convention.

35.At
the same time, the IACHR has determined that the right to effective
judicial protection requires the implementation of court-ordered
provisional measures. Accordingly, failure to implement such measures
may also constitute violation of this right.

36.The
Inter-American Commission has
also forged an important standard regarding the lengths to which victims
should have to go in seeking compliance with judicial rulings in their
favor. Accordingly, the Commission considered that states should
enforce such judicial decisions immediately, without making it necessary
for the persons affected to bring additional actions of a criminal,
administrative, or any other nature, in order to secure their
enforcement.

37.The
Commission has also been emphatic with regard to the need to ensure
enforcement of administrative decisions. Thus, it considers it
necessary for the Administration to have effective mechanisms to ensure
compliance with orders issued by administrative authorities.

38.Both
the Inter-American Court and the
Inter-American Commission have started to develop important
standards on the design and implementation of effective judgment
enforcement mechanisms. In this connection, the Court has found that
State responsibility does not end when the system of justice issues a
final judgment and it becomes binding. In the Court’s view, from that
point forward the State must also guarantee the necessary means to
enable effective execution of said final judgment. Indeed, the right to
judicial protection would prove illusory if the State’s domestic legal
system were to allow a final binding decision to remain inoperative to
the detriment of one of the parties.

39.In
keeping with the foregoing, the Court has considered that to speak of
"effective judicial remedies" it is not sufficient for final judgments
to be delivered that protect the rights at issue, since the enforcement
of judgments should be considered an integral part of the right to
effective judicial protection. At the same time, the Court has held
that in the case of judgments on guarantee remedies, due to the special
nature of the protected rights, states should comply with them as soon
as possible, adopting all necessary measures to that end. On that
score, the Court has emphatically stated that budget regulations may not
be cited as an excuse for a protracted delay in complying with the
judicial decisions that protect human rights.

40.Thus,
the Court has found that delay in executing a judgment may not be such
as to cause greater impairment of the rights protected in the decision
and, so, undermine the right to effective judicial protection.

41.International
human rights law has developed standards on the right of access to
judicial and other remedies that serve as suitable and effective
grievance mechanisms against violations of human rights. In that sense,
states not only have a negative obligation not to obstruct access to
those remedies but, in particular, a positive duty to organize their
institutional apparatus so that all individuals can access those
remedies. To that end, states are required to remove any regulatory,
social, or economic obstacles that prevent or hinder the possibility of
access to justice.

42.In
recent years, the inter-American system of human rights has recognized
the need to begin to outline principles and standards on the scope of
the rights to a fair trial and effective judicial protection in cases
involving violation of economic, social and cultural rights.

43.Accordingly,
the Inter-American Commission has prepared this review in order to
highlight and systematize the case law of the IASHR–both the IACHR and
the Court–on four core issues that it has regarded as priorities for the
book that the at the judicial protection of economic, social and
cultural rights: 1) the obligation to remove economic obstacles to
ensure access to the courts; 2) the components of due process of law in
administrative proceedings concerning social rights; 3) the components
of due process of law in judicial proceedings concerning social rights;
and, 4) the components of effective judicial protection of individual
and collective social rights.

44.These
standards are valuable as guidelines for domestic courts to interpret
the American Convention. Furthermore, they can enhance the
institutional framework of social services and policies in the countries
of the Americas, strengthening oversight, transparency, and
accountability systems, as well as mechanisms for participation and
societal oversight of public policies in this area. This overview of
the case law of the inter-American system also makes it possible to have
a better analysis of the main problems in the region as regards access
to justice systems. Individual cases cannot be considered absolutely
representative of the social and institutional problems of all the
countries in the region; however, it is fair to say that the petitions
system makes a good sound box for these problems.

45.The
purpose of this review is to underscore and systematize the principal
standards adopted by the IACHR in its reports on individual petitions,
country reports, and thematic reports; and by the Inter-American Court
in its case law and advisory opinions. The review is intended to be
purely descriptive and does not include an examination of the case law
mentioned, other than to organize precedents according to common themes
and relate the principles and standards adopted to the specific problems
and actual situations examined in each case. The IACHR believes that
this systematization could help improve understanding and dissemination
of its jurisprudence and so serve to guide the application of
international instruments in the countries of the region.

46.This
review also serves as a basis for the IACHR to draft indicators to
measure progress in the area of economic, social and cultural rights
with a view to their application by the body created to monitor
implementation of the Protocol of San Salvador. In its proposed
“Guidelines for Preparation of Progress Indicators in the Area of
Economic, Social and Cultural Rights” submitted to the Permanent Council
of the OAS, the IACHR recommends the inclusion of access to justice
indicators, whose design is essentially based on the standards and
problems examined in this review.

47.Furthermore,
the IACHR believes that this document could also provide the building
blocks for a more extensive research effort on the issue, in order to
collect information on obstacles, problems, challenges, and progress in
the performance by states of their duty to ensure access to justice for
the protection of the economic, social and cultural rights.

48.Numerous
aspects connected with effective access to justice, such as availability
of a free public defense for persons without means and procedural costs,
are of inestimable instrumental value to ensure the enforceability of
economic, social and cultural rights. In this regard, it is common for
the unequal economic or social situation of litigants to be reflected in
an unequal possibility of defense in trial. One aspect that affects the
extent of the right of access to justice has to do with economic or
financial obstacles in access to the courts and with the scope of the
positive obligation of the State to remove those obstacles in order to
ensure an effective right to a hearing by a tribunal.

49.Policies
that are designed to ensure legal services for persons without means act
as mechanisms to compensate for situations of material inequality that
impair the effective protection of individual interests. Therefore, it
may be that judicial polices are connected with social services and
policies. Accordingly, this is an area in which it is worth determining
the precise scope of state obligations and the principles on which the
organization and provision of services of this type should be based,
inasmuch as they are essential instruments for ensuring the exercise of
human rights by excluded and impoverished sectors.

50.The
IASHR has recognized the key role of the realization of the right of
access to justice in ensuring human rights in general and social rights
in particular. It has established a series of standards that impact on
the workings of judicial systems in the region.

51.It
was in Advisory Opinion OC-11/90 of the Inter-American Court of Human
Rights,[1]
that the IASHR first specifically addressed the need to remove obstacles
in access to justice that might originate from a person’s economic
status.[2]
On that occasion, the IACHR submitted a request for an advisory opinion
to the Court in which it inquired, inter alia, if the rule of
exhaustion of domestic legal remedies applied to an indigent, who,
because of economic circumstances, was unable to avail himself of the
legal remedies within a country.[3]

52.In
this framework, the Inter-American Court confirmed the prohibition of
discrimination against persons by reason of their economic status and
found that "…[i]f a person who is seeking the protection of the law in
order to assert rights which the American Convention guarantees finds
that his economic status (in this case, his indigence ) prevents him
from so doing because he cannot afford […] the necessary legal counsel
[…], that person is being discriminated against by reason of his
economic status and, hence, is not receiving equal protection before the
law."[4]

53.On
this occasion, despite recognizing the positive obligation of the State
to ensure access to justice, the Court only went as far as the noting
that “the circumstances of a particular case or proceeding -its
significance, its legal character, and its context in a particular legal
system- are among the factors that bear on the determination of whether
legal representation is or is not necessary for a fair hearing.”[5]

54.In
the framework of a later advisory opinion, the Court again referred
expressly to the duty of the state to provide free legal counsel.
In this connection, in Advisory Opinion OC-18/03, "Juridical Condition
and Rights of the Undocumented Migrants,"[6]
the Court found that the refusal to provide a free public legal aid
service to a person without means constitutes a violation of the rights
to a fair trial and to effective judicial protection. In that opinion,
the Court set out the aforementioned standard in the following terms:

The right to judicial
protection and judicial guarantees is violated for several reasons:
owing to the risk a person runs, when he resorts to the administrative
or judicial instances, of being deported, expelled or deprived of his
freedom, and by the negative to provide him with a free public legal aid
service, which prevents him from asserting the rights in question.[7]

55.It
is appropriate here to cite the "Report on the Situation of Human
Rights in Ecuador" prepared by the IACHR in 1997.[8]
In that report, the Inter-American
Commission referred to the importance of providing free legal
services in order to comply with the mandate contained in the American
Convention. The IACHR observed that:

Domestic law requires that
individuals be represented by counsel to access judicial protection.
Under the present system, litigants who are unable to afford private
counsel must wait for a public defender to become available. Such
claimants must often wait for long periods to have access to justice.
This is clearly inconsistent with the provisions of the American
Convention. […] discrimination in the application or availability of
judicial guarantees on the basis of economic status is prohibited by a
reading of the provisions of Articles 1.1, 8 and 24 of the American
Convention […] Given that all claimants must be represented by counsel
to pursue their actions, the number of public defenders available to
assist claimants must be increased, so that this service is available to
every individual who requires them to have access to judicial
protection to vindicate a protected right.[9]
(Emphasis Added)

56.Thus,
the IACHR has not only recognized the general standard establishing the
obligation of the state to provide free legal assistance to persons
without means,[10]
but also identified a series of criteria by which to determine its
propriety in specific cases. Thus, in the "Report on Terrorism and
Human Rights,"[11]
the Inter-American Commission
has identified the following factors for the purposes of such a
determination: a) the resources available to the person concerned; b)
the complexity of the issues involved; and, c) the significance of the
rights involved.[12]

57.In
the Case of Andrew Harte and Family, the IACHR outlined certain
guidelines as regards the necessary proof to attest to lack of access to
justice for economic reasons. Mr. Harte was a Guyanese national and a
permanent resident of Canada. In 1994, Canada ordered his deportation
because of multiple convictions for criminal offences. Mr. Harte was
scheduled to be deported to Guyana in October 1997. In February 1998,
Mr. Harte applied for a ‘Minister’s permit’ to allow him to remain in
Canada. The State denied his application in August 1998, with the
argument stating that the proper procedure was an application to remain
in Canada on humanitarian and compassionate grounds. The petitioner
contended that Mr. Harte did not have the money or access to legal aid
to pursue judicial review of this decision.

58.In
his petition, Mr. Harte argued that he was denied access to domestic
remedies on account of his indigence and inability to access legal aid
at critical junctures of domestic legal processes. Canada is not a
party to the American Convention. However, the Commission considered
that the case law of the Inter-American Court was applicable to it in
this case and so, therefore, were provisions of Advisory Opinion OC
11/90.

59.The
IACHR examined the situation of Mr. Harte under the parameters set forth
by the Court in said Advisory Opinion and found in its analysis of
admissibility that:

Mr. Harte’s claim of
indigence relates to his alleged inability to access legal
representation generally and, more particularly, with respect to his
alleged inability to pay the fees required by the State to pursue an
application to remain in Canada on humanitarian and compassionate
grounds. In a statutory declaration submitted to the Commission on his
behalf, Mr. Harte stated that he is unemployed and that his bail bond
was posted by virtue of a loan raised by his mother and not by his own
resources. Mr. Harte also stated that he and the children reside with
his mother, where he has the sole responsibility for their care,
because their mother is unable to do so because of mental illness.
The Commission received no further information or evidence in support of
Mr. Harte’s claim of indigence. […] [T]he Commission has previously
observed that “Allegations of indigence are insufficient without other
evidence produced by the Petitioner to prove that he was prevented from
invoking and exhausting the domestic remedies…” In the Commission’s
view, Mr. Harte’s statutory declaration of indigence without any
corroborating evidence is insufficient to establish that “indigence”
prevented the Petitioner from invoking and exhausting domestic remedies
in Canada. Accordingly, the Commission finds that Mr. Harte was not
prevented by indigence from accessing legal representation necessary to
pursue domestic remedies or paying the requisite fees to apply to remain
in Canada on humanitarian and compassionate grounds.[13]
(Emphasis added)

60.At
the same time, the petitioner held that he was unable to avail himself
of the services of community legal clinics because said clinics lacked
“the resources or the competence to deal with cases like Mr. Harte’s.”[14]
In turn, the State furnished a comprehensive list of institutions that
offer free legal assistance. In this framework, the
Inter-American Commission
noted that the evidence of availability of legal representation was not
disproved by the petitioner’s largely general and uncorroborated claims
that Mr. Harte was refused legal aid or that community legal clinics
were incapable of providing assistance. Therefore, the IACHR concluded
that legal assistance was available to Mr. Harte to invoke domestic
remedies and it proceeded to declare the case inadmissible.

61.This
case enabled the IACHR to develop an important standard in this area.
Thus, it was determined that it is not sufficient to claim to be
indigent and that legal assistance is unavailable but that such an
assertion must be substantiated with appropriate evidence.[15]

62.The
IACHR has also moved forward with the identification of certain judicial
proceedings in which it has considered that free legal counsel is
essential in order to comply with the mandate of the American
Convention.

63.In
this respect, inter alia, in its report on merits in the
Whitley
Myrie case,[16]the IACHR considered that the State was obliged under the American
Convention to provide individuals with effective access to
constitutional motions, which may require the provision of legal
assistance when individuals lack the means to bring such motions on
their own.

64.In
this particular case, the petitioner demanded free legal assistance --on
account of his indigence-- to bring a constitutional motion to challenge
a criminal conviction; however, the standard set by the IACHR as regards
the obligation of the State to provide legal assistance transcends the
framework of criminal proceedings and is tied directly to the technical
complexity of the type of judicial remedy that the victim was seeking in
the case. Thus, the IACHR took into account the argument that
constitutional motions involve “sophisticated and complex questions of
law” which require the assistance of counsel.

65.Finally, in its recent
report "Access to Justice for Women Victims of Violence in the
Americas,"[17]
the IACHR again drew attention to the need to offset situations of
economic disadvantage and highlighted the consequent obligation to
increase the availability of free legal assistance services. In this
regard, the IACHR observed:

Women of means have far
greater access to the justice system than do economically disadvantaged
women. In their replies to the questionnaire, some States said that pro
bono legal services were being provided to victims. The IACHR, however,
notes that given the severity and prevalence of the problem of violence
against women, recognized as being one of the priority challenges, more
pro bono legal services are needed.[18]

B.
Procedural Costs, Location of
Tribunals, and the Right of Access to Justice

66.In
addition to the lack of organized free legal representation services,
the IASHR has identified other factors that can render access to justice
impossible: procedural costs and the location of tribunals

67.In
Advisory Opinion OC 11/90, the Court expressly recognized that lack of
free legal assistance may not be the only economic obstacle to justice.
Thus, it found that procedural costs are also a factor to the borne in
mind on this point.[19]

68.In
this connection, in its judgment in the Cantos case,[20]
the Court held that:

This provision of the
Convention [Article 8(1)] upholds the right of access to the courts. It
follows from this provision that States shall not obstruct persons who
turn to judges or the courts to have their rights determined or
protected. Any
domestic law or measure that imposes costs or in any other way obstructs
individuals’ access to the courts and that is not warranted by what is
reasonably needed for the administration of justice must be regarded as
contrary to Article 8(1) of the Convention.[21](Emphasis added)

69.In
that case, the Court had to decide, inter alia, if the amount of
the filing fee that the Argentine courts demanded from the petitioner,[22]
having refused him the benefit of litigating without costs, was
compatible with the rights enshrined in Articles 8 and 25 of the
American Convention. In its ruling, the Court found:

[T]he amount set in the form
of filing fees and the corresponding fine are, in the view of this
Court, an obstruction to access to the courts. They are unreasonable,
even though in mathematical terms they do represent three percent of the
amount of relief being claimed. This Court considers that while the
right of access to a court is not an absolute and therefore may be
subject to certain discretional limitations set by the State, the fact
remains that the means used must be proportional to the aim sought. The
right of access to a court of law cannot be denied because of filing
fees. […] The fact that a proceeding concludes with a definitive court
ruling is not sufficient to satisfy the right of access to the courts.
Those participating in the proceeding must be able to do so without fear
of being forced to pay disproportionate or excessive sums because they
turned to the courts. The problem of excessive or disproportionate
filing fees is compounded when, in order to force payment, the
authorities attach the debtor’s property or deny him the opportunity to
do business.[23]

70.Consequently,
the Court determined that the amount charged patently obstructed Mr.
Cantos’ access to the courts and thereby violated Articles 8 and 25 of
the American Convention.

71.With
a view to removing economic obstacles of this type, the IACHR has begun
to outline the scope of the various obligations of states, both as
regards judicial proceedings, and in relation to the development of
administrative procedures.

72.In
this connection, in the Yean and Bosico case,[24]
the IACHR expressly referred to the need to set limits on costs in
proceedings in order to prevent violation of fundamental human rights.

73.The
aforesaid case provides a clear illustration of various aspects of the
connection between administrative due process and the enjoyment and
exercise of human rights. While this case is examined in detail later
in this report, it should be mentioned here that in its application to
the Inter-American Court the IACHR requested that the Dominican Republic
be ordered to:

C) Create a legal
mechanism that, in case of dispute, allows individuals to file their
reports directly before the judicial instance, so that their complaints
can be reviewed by an independent and impartial judicial organ. D) This
mechanism should provide a simple, prompt and inexpensive recourse
for individuals without a birth certificate.[25]
(Emphasis added)

74.In
this way, the IACHR added a new characteristic to the type of remedies
that states are required to ensure in order to comply with the mandate
contained in the American Convention. Furthermore, it established the
obligation to take steps to make certain that judicial remedies created
to review administrative decisions are not only prompt and effective,
but also “inexpensive.”

75.In
its arguments to the Court, the IACHR set an important standard with
respect to costs in administrative procedures. The
Inter-American Commission
determined that the insistence on certain requirements in the
administrative procedure for late registration of births in the
Dominican Republic, which were difficult to comply with and involved
costs, amounted to obstacles that prevented the enjoyment of rights
contained in the American Convention. Concretely, the IACHR stated
that,

The Central Electoral Board
insists that a series of documents must be presented in order to proceed
with a late declaration of birth. These requirements violate not
only rights contained in the Constitution and laws deriving from it, but
also rights enshrined in the American Convention, because they are
difficult to comply with, involve expenditure and constitute obstacles
that prevent the enjoyment of the right to nationality of most children
in the same situation as the children Dilcia and Violeta; namely,
Dominicans of Haitian origin.[26]
(Emphasis added)

76.In
turn, in the above-cited report "Access to Justice for Women Victims
of Violence in the Americas," the IACHR draws particular attention
to the failure of judicial proceedings in cases of violence against
women owing to the costs involved in the proceedings.

77.In this connection,
the research that IACHR conducted in preparing this report led it to
conclude that lack of economic resources to furnish evidence very often
obstructs progress in judicial proceedings on violence against women.
Concretely the IACHR observed that:

One of the problems cited by
the prosecutors interviewed in Tegucigalpa was pursuing cases that
complainants have already “abandoned”; this ties in with a number of
factors, among them the economic means to mobilize and move the
individual and witnesses, intimidation or threats on the part of the
accused, or the use of extrajudicial avenues to settle the family
dispute, such as mediation before other bodies. Our view is that such
cases should not be considered abandoned, since the problems with the
system in terms of double victimization and the difficulties of
getting a court hearing at no cost and on an equal footing, are more
often the reasons why a victim is unable to see her case through to the
end.[27]
(Emphasis added)

78.In
the above-cited report, the IACHR also drew attention to another
economic obstacle of enormous significance in terms of access to
justice: location of tribunals. On this point, the
Inter-American Commission
noted:

The
judicial presence and state advocacy services available to women victims
nationwide is inadequate, which means that victims have to draw on their
own economic and logistical resources to file a complaint and then
participate in judicial proceedings.[28]
(Emphasis added)

79.Faced
with this situation, the Inter-American Commission
highlighted the importance of community resources --such as justices of
the peace and community ombudspersons-- and the need for them to have
access to mechanisms and resources to ensure their effectiveness. The
purpose of the foregoing is to provide basic services to women victims
of violence in rural, marginal and poor areas, as well as information on
legal procedures, support with administrative procedures, and legal
assistance to victims in judicial proceedings.[29]

80.Further
to the foregoing, in the aforementioned report of its Rapporteur on the
Rights of Women the IACHR has pinpointed a number of structural problems
that create economic obstacles in access to justice: a) the absence of
institutions necessary for the administration of justice in rural, poor
and marginalized areas;[30]
b) the lack of court-appointed attorneys or public defenders available
for victims of violence who are without economic means;[31]
c) the economic cost of judicial proceedings.[32]
Among its recommendations, the IACHR included the following:

Create adequate and
effective judicial bodies and resources in rural, marginalized and
economically disadvantaged areas so that all women are guaranteed full
access to effective judicial protection against acts of violence. 2)
Increase the number of court-appointed attorneys available for women
victims of violence and discrimination…[33]

81.The
IACHR has recently begun to draw attention to certain social groups that
are caught in situations of structural inequality and exclusion and,
therefore, are denied the possibility of access to justice.

82.In
the Case of Simone André Diniz,[34]
the petitioner was denied the possibility of securing employment because
she was of African descent. Ms. Diniz reported the racial
discrimination she had suffered but the Office of the Attorney General
simply decided that there were no grounds to bring a criminal suit for
racism.[35]
The judge, in turn, accepted the arguments of the prosecution and
decided to dismiss the case.

83.In
its report on merits in the case, the IACHR concluded that the State did
not guarantee the full exercise of the right to justice and due process
of law because it failed to pursue domestic remedies to look into the
racial discrimination suffered by Ms. Simone André Diniz and, therefore,
breached its obligation to ensure the exercise of the rights provided in
Articles 8(1) and 25 in conjunction with Article 1(1) of the American
Convention.

84.With
regard to the existence of economic obstacles in access to the courts in
order to institute proceedings for the crime of racism, the IACHR noted:

The perpetrator of injuria
racista in Brazil enjoys impunity in most cases. According to attorneys
of Afro-Brazilian organizations, the fact that insulto racial is not
covered by Law 7716/89 creates a hindrance to the administration of
justice, as injuria, according to the Brazilian Criminal Code, is a
crime of private action, and so opening an investigation depends on the
initiative of the victim. Yet most victims of racism in Brazil are poor
and have no way to hire an attorney.[36]

85.This
is a landmark case in the framework of the IASHR, since the Commission
expressly identified the existence of a systematic practice on the part
of the Brazilian judiciary that tended to undermine enforcement of the
countries anti-racism law.[37]
Consequently, the Inter-American
Commission drew attention to the fact that this practice gave
rise to a generalized situation of unequal access to justice for victims
of racial discrimination.[38]

86.At
the same time, in its report "Access to Justice for Women Victims of
Violence in the Americas," the IACHR drew particular attention to
the difficulties that Afro-descendant women and indigenous people have
in availing themselves of judicial remedies. With respect to the
former, the IACHR noted that:

Afro-descendant women who
live in marginalized, rural areas in small, tightly clustered social
groups that still preserve their languages, traditions and customs and
sometimes even their own systems of justice, will have to contend with
problems of geographic accessibility, an inability to communicate with
judicial authorities in their own languages, a knowledge of the process,
and a lack of economic means. These are the very same problems that
indigenous women face. And like indigenous women, Afro-descendant women
will have to contend with discrimination on two levels: one based on
their gender and the other based on their race. […] Theirs is not
unlike the situation of Afro-descendant women in urban areas, where the
difficulties they will face in availing themselves of effective judicial
remedies, have to do with their economic disadvantage and skin color.
In those areas where the economic factor and social exclusion have been
conquered, the difficulties are generally related to skin color.[39]

87.The
IACHR also drew attention to the plight of indigenous women:

From a variety of sources and through
implementation of the inter-American system’s mechanisms, the IACHR has
compiled information on the obstacles that indigenous women encounter in
attempting to access the justice system. These obstacles are generally
a function of the social exclusion and ethnic discrimination that they
have historically suffered. The problem that women encounter is
compounded by the geographic remoteness of indigenous territories. To
be able to access the justice system, indigenous women may have to walk
for days, overland or by water, to get to the nearest city to report the
violence they have suffered. This also poses evidentiary problems.
Indeed, an indigenous woman’s problems do not end when she reaches the
city, because there she will likely encounter obstacles of another sort:
financial problems, a lack of information, discomfort with an urban
environment. A lack of command of the language of the court is also
routinely cited as one of the factors that makes access to justice
difficult for indigenous women.[40]

88.The
IACHR considers that poverty is particularly prevalent among these women
and that States, therefore, have the obligation to provide them with pro
bono legal services to enable them to access the judicial protective
bodies. They also need more information about the resources available
to them within the justice system and about their rights.[41]

89.The
foregoing precedents show that the IASHR has recognized the obligation
to remove any obstacles in access to justice that originate from the
economic status of persons.

90.First
of all, both the Inter-American Court and the IACHR have made it an
obligation to provide free legal services to persons without means in
order to prevent infringement of their right to a fair trial and
effective judicial protection. With this in view, the Commission has
identified certain guidelines for determining the propriety of free
legal counsel in specific cases. These are: a) the resources available
to the person concerned; b) the complexity of the issues involved; and,
c) the significance of the rights involved.

91.At
the same time, the IACHR has determined that in certain judicial
proceedings free legal counsel is necessarily required, in order to
present and pursue those proceedings. Thus, the
Inter-American Commission has
found that the technical complexity of certain constitutional
proceedings obligates the provision of free legal counsel in order
effectively to institute them.

92.In
second place, the IASHR has established that procedural costs --whether
in judicial or administrative proceedings-- and the location of
tribunals are factors that may also render access to justice impossible
and, therefore, result in a violation of the right to a fair trial.

93.In
this way, the IASHR have found that any proceeding in which the costs
are prohibitive is an outright violation of Article 8 of the American
Convention. On this point, the
Inter-American Commission has held that judicial remedies created
to review administrative decisions must be not only prompt and
effective, but also “inexpensive.”

94.Finally,
the IASHR has begun to identify situations of systematic exclusion of
particularly vulnerable sectors of society from access to justice. In
these cases, the IACHR has underscored the obligation of the State to
provide free legal services and to strengthen community mechanisms for
this purpose, in order to enable these groups to access the judicial
protective bodies. They also need more information about the resources
available to them within the justice system and about their rights.

[1]I/A
Court H.R., Exceptions to the Exhaustion of Domestic Remedies
(Arts. 46(1), 46(2)(a) and 46(2)(b), American Convention on Human
Rights). Advisory Opinion OC-11/90 of August 10, 1990. Series A No.
11.

[2]
In the European system this issue was analyzed more than a decade
earlier in the framework of the Airey case. Mrs. Johana Airey was
unable to find a solicitor to assist her in proceedings for judicial
separation from her husband before the High Court of Ireland. In
Ireland judicial separation proceedings could only be taken up by
the High Court, and the complexity of the proceedings required the
assistance of lawyers, whose fees were prohibitive for the
applicant. The complexity of the evidence required in the case and
the normal practice of that tribunal made it most improbable that
the applicant would have been able successfully to pursue her
separation without legal representation, even though Irish law did
not expressly prohibit it. At the time, Ireland had not yet
organized a system of legal aid that included family law matters.
The applicant claimed a breach, inter alia, of Article 6(1)
of the European Convention on Human Rights, which recognizes the
right of effective access to the courts. In its judgment, the
European Court of Human Rights considered that Ireland did not have
a specific obligation - as a party to the European Convention on
Human Rights - to provide free legal assistance on civil-law
matters, since it was up to each state to choose reasonable measures
to ensure access to justice, removing the material obstacles
mentioned (legal aid may be a mechanism, but there are others, such
as simplification of procedure). However, in the specific case of
Mrs. Airey -who was unable to retain a lawyer to assist her in the
judicial separation proceeding because she could not afford the
costs that she would be forced to incur in that proceeding-, the
State did not guarantee her right to effective access to justice
and, therefore, breached Article 6(1) of the European Convention.
Cf. ECHR, Case of Airey v. Ireland,
Judgment of 9 October 1979, Series A, No. 32.

The ECHR has
also referred in more recent cases to the obligation to provide free
legal counsel in circumstances in which the absence of an attorney
could constitute a violation of the right of access to justice. See
in this connection, for example, ECHR Steel and Morris v. United
Kingdom, Judgment of 15 February 2005.

[4]
Cf. Advisory Opinion
OC-11/90, cit., para. 22. On this point, it should be mentioned,
too, that this case law extends also to violation of fundamental
rights recognized by the Constitution and the law, pursuant to
Article 25(1) of the American Convention.

[5]
Cf. Advisory Opinion
OC-11/90, cit., para. 28. As regards the
specific consultation submitted by the IACHR, the Court concluded
that, “if it can be shown that an indigent needs legal counsel to
effectively protect a right which the Convention guarantees and his
indigence prevents him from obtaining such counsel, he does not have
to exhaust the relevant domestic remedies.”
Cf. Advisory Opinion
OC-11/90, cit., para. 31.

[6]I/A
Court H. R., Juridical Condition and Rights of the Undocumented
Migrants.
Advisory Opinion OC-18 of September 17, 2003. Series A No. 18.

On May 10,
2002, Mexico submitted to the Court a request for an advisory
opinion on the “[...] deprivation of the enjoyment and exercise of
certain labor rights [of migrant workers,] and its compatibility
with the obligation of the American States to ensure the principles
of legal equality, non-discrimination and the equal and effective
protection of the law embodied in international instruments for the
protection of human rights; and also with the subordination or
conditioning of the observance of the obligations imposed by
international human rights law, including those of an erga omnes
nature, with a view to attaining certain domestic policy objectives
of an American State.” OC18/03 is the result of that consultation.

[8]
IACHR, Report on the Situation of Human Rights in Ecuador,
April 24, 1997, (OEA/Ser.L/V/II.96).

[9]See in
this respect, Report on the Situation of Human Rights in Ecuador,
Cit., Chapter III. It is also apt to cite here the recent report of
the IACHR, Violence and Discrimination against Women in the Armed
Conflict in Colombia. Among its conclusions and recommendations
concerning the administration of justice, the report mentioned the
need “[t]o increase access to legal representation free of charge
for victims of violence and discrimination against women.” Cf. IACHR,
Violence and Discrimination against Women in the Armed Conflict
in Colombia, October 18, 2006 (OEA/Ser.L/V/II., Doc. 67),
Chapter VI, para. 51.

[10]
See in this respect, IACHR, Report on
Terrorism and Human Rights, October 22, 2002 (OEA/Ser.L/V/ll.116),
para. 236. There, for
example, the Commission reaffirmed the need to ensure free legal
representation in any proceeding for the determination of rights,
and it expressly stated, “Both the Commission and the Inter-American
Court have observed in this respect that in criminal proceedings and
those relating to rights and obligations of a civil, labor, fiscal
or any other nature, an indigent has the right to legal counsel
free of charge where such assistance is necessary for a fair hearing…”.

[11]
The Commission decided in December 2001 to undertake a study by
which it would reaffirm and elaborate upon the manner in which
international human rights requirements regulate state conduct in
responding to terrorist threats. Accordingly, the Commission
endeavored to provide a timely and focused analysis of the principal
human rights implications of efforts by states to respond to
terrorist threats. It has done so by placing those efforts within
the established framework of several core international human
rights, in particular the right to life, the right to humane
treatment, the right to personal liberty and security, the right to
a fair trial, the right to freedom of expression and the right to
judicial protection. The outcome of this effort is the Report on
Terrorism and Human Rights. Cf.
Report on Terrorism and Human Rights, cit., paras. 6 and
7.

[15]
The IACHR had already referred to the need sufficiently to accredit
an alleged situation of destitution in its inadmissibility report in
the Rosa Margarita Aráuz et al. case. On that occasion the
IACHR noted: “…As evidence of their economic situation, the
petitioners merely submitted a number of documents, such as the
report of the Nicaraguan Institute of Social and Economic Research,
the Central Bank of Nicaragua’s 1994 report, and the Inter-American
Development Bank’s 1995 report on Nicaragua. However, these
studies provided no specific evidence of the economic situation of
each individual plaintiff; there is insufficient evidence in the
case file to show that the 8,288 plaintiffs were destitute or unable
to provide the surety required by the Nicaraguan courts. […]
Requiring the plaintiffs to guarantee costs in order for them to be
heard at trial and their material inability to post the required
bond should be proved on a case-by-case basis and not globally, as
the petitioners did with the aforesaid reports; this fact led to the
dismissal of the suits filed with the different courts. […]The
Commission believes that in the case at hand, the petitioners’
submissions do not contain sufficient grounds or evidence to
indicate the responsibility of the Nicaraguan State in violations of
rights enshrined in the American Convention…”
Cf. Report Nº 101/00, Case 11.630, Rosa Margarita Aráuz et al,
Nicaragua, October 16, 2000, paras. 55, 57.

[17]
IACHR, Access to Justice for Women Victims of Violence in the
Americas, 2007.

[18]
Cf. Access to Justice for Women Victims of Violence in the
Americas, cit. para. 182.

[19]
Thus, the Court has held: “…29. Lack of legal counsel is not, of
course, the only factor that could prevent an indigent from
exhausting domestic remedies. It could even happen that the state
might provide legal counsel free of charge but neglect to cover the
costs that might be required to ensure the fair hearing that Article
8 prescribes. In such cases, the exceptions to Article 46(1) would
apply. Here again, the circumstances of each case and each
particular legal system must be kept in mind. […] 30 […]if legal
services are required either as a matter of law or fact in order for
a right guaranteed by the Convention to be recognized and a person
is unable to obtain such services because of his indigence, then
that person would be exempted from the requirement to exhaust
domestic remedies. The same would be true of cases requiring the
payment of a filing fee. That is to say, if it is impossible for an
indigent to deposit such a fee, he cannot be required to exhaust
domestic remedies unless the state provides some alternative
mechanism.” (Emphasis added) Cf., Advisory Opinion
OC-11/90, cit., paras. 29 and 30.

[22]
The claim that Mr. Cantos filed with Argentina’s Supreme Court
totaled 2,780,015,303.44 pesos (two billion, seven hundred eighty
million, fifteen thousand and three hundred three pesos and
forty-four cents), the equivalent of the same amount in United
States dollars. Under Argentine law, the fee at time of filing was
three percent (3%) of the total amount of relief being claimed. The
filing fee is the sum of money that every person filing suit in
court must pay to have access to the courts. Under Argentine law,
the filing fee is a flat percentage, and there is no maximum filing
fee. In the case sub judice, that three percent (3%)
represents 83,400,459.10 pesos (eighty-three million, four hundred
thousand, four hundred fifty-nine pesos and ten cents), or the
equivalent of the same amount in United States dollars. Cf.,
Case of Cantos, cit., para. 53.

[27]
Cf. Access to Justice for Women Victims of Violence in the
Americas, cit., para. 158. The report also mentions that a
study on gender discrimination in the administration of justice in
Bolivia found that women no longer turn to the justice system for a
variety of reasons, including: “the lack of identification papers,
a preconceived notion that it must be costly to work through the
judicial system, the time they need to invest to go through with
proceedings, fear of losing the case and the possibility of
reprisals on the part of the aggressor. They also believe that the
administration of justice is politicized and can be bought.”
(Emphasis added) Cf. Access to Justice for Women Victims of
Violence in the Americas, 2007, para. 178.

[28]
Cf. Access to Justice for Women Victims of Violence in the
Americas, cit., para. 182.

[29]
Cf. Access to Justice for Women Victims of Violence in the
Americas, cit., para. 182. In this respect, see also, Report
on the Situation of Human Rights in Ecuador, cit., Chapter III.

[30]
Cf. Access to Justice for Women Victims of Violence in the
Americas, cit., para. 10.

[31]
Cf. Access to Justice for Women Victims of Violence in the
Americas, cit., para. 10.

[32]
Cf. Access to Justice for Women Victims of Violence in the
Americas, cit., para. 12.

[33]
Cf. Access to Justice for Women Victims of Violence in the
Americas, cit., Specific Recommendations.

[39]
Cf. Access to Justice for Women Victims of Violence in the
Americas, cit., paras. 211 and 212. In this regard see, too,
IACHR, Violence and Discrimination against Women in the Armed
Conflict in Colombia, October 18, 2006 (OEA/Ser.L/V/II., Doc.
67), Chapters IV and V(f).

[40]
Cf. Access to Justice for Women Victims of Violence in the
Americas, cit., para. 199.

[41]
Cf. Access to Justice for Women Victims of Violence in the
Americas, cit., para. 215.